McCullough v. Coleman

March 2, 2009

AARON MCCULLOUGH, PETITIONERv.BRIAN COLEMAN, ET AL., RESPONDENTS

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 2nd day of March, 2009, upon consideration of the report of the magistrate judge (Doc. 10), to which no objections were filed, recommending dismissal of the petition for writ of habeas corpus (Doc. 1) filed pursuant to 28 U.S.C. § 2254, and, following an independent review of the record, it appearing that petitioner received a full and fair opportunity to litigate his Fourth Amendment claim in the state courts,*fn1 and that petitioner does not contend that his right to such a hearing was denied, but rather that the state court erred in resolving his claim therein, (see Doc. 2 at 15), and the court concluding that petitioner has received a full and fair hearing within which to present his Fourth Amendment claim, and that his instant attempt to relitigate this issue is meritless, see Stone v. Powell, 428 U.S. 465, 481 (1976) ("[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial."); see also Gilmore v. Marks, 799 F.2d 51, 56 (3d Cir. 1986) ("[A] federal court may not re-examine the state court's determination that no Fourth Amendment violation occurred."), it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Doc. 10) is ADOPTED.

2. The petition for a writ of habeas corpus (Doc. 1) is DENIED.

3. A certificate of appealability is DENIED. See 28 U.S.C. § 2253(c).

4. The Clerk of Court is directed to ...

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